I have been deported or I have committed fraud: How can I return to the U.S.?

On behalf of Youman, Madeo & Fasano, LLP on Wednesday, August 28, 2013.

You or a loved one may be stuck outside the United States after having been denied admission into the United States based on fraud or you were previously deported or subject to expedited removal. Under such circumstances, what are the options for being granted permission to re-enter the United States to be reunited with loved ones?

A common scenario involves an individual from abroad who obtains a fake visa or fake travel document with the intention of entering the United States. After presenting themselves for admission, the Customs and Border Protection officer determines that the individual is attempting to enter the United States by fraudulent means after "procuring a visa by willfully misrepresenting a material fact" and due to a previous expedited removal. The applicant for admission in this circumstance would seek a waiver of inadmissibility and permission to reapply for admission into the United States in order to reside in the United States with a loved one, such as a U.S. citizen or green card holding spouse or parent. The applications for the waivers are made pursuant to INA §212(i).

In order for the individual to re-enter the United States, the applicant submits the "fraud waiver" on a Form I-601 to the field office director having jurisdiction over the applicant's place of residence. In addition, the applicant must file an Application for Permission to Reapply for Admission Into the United States after Deportation or Removal (Form I-212).

The hardship must be supported by the applicant working in cooperation with her attorney to build up the case for hardship. The standard that must be met is a showing of "extreme hardship" to the U.S. citizen spouse if the waiver is not granted. An application finds support with the submission of hardship statements from the qualifying relative and the applicant; medical records, if applicable; tax records and any evidence that shows the equities in the United States such as community involvement and family ties. The equities and hardship are submitted with psychological records that establish the emotional and psychological hardship that has a DSM IV diagnosis support by a pattern of therapy. Psychological hardship cannot be established without a pattern and record of therapy. Country conditions evidence is very helpful to show the hardship as it relates to living conditions, ability to earn an income and access and quality of medical care that the spouse will face if he is forced to relocate outside of the United States.

Examples of willful misrepresentations that would lead to a finding of inadmissibility based on fraud may be a misrepresentation about previous unauthorized employment in the United States or misrepresentation about the length of an intended stay in the United States.

In order to satisfy the fraud waiver, the applicant must show that the bar to admission imposes extreme hardship on a qualifying relative, which includes a U.S. citizen or lawful permanent resident spouse or parent of the applicant. Hardship to the applicant can be considered only insofar as it results in hardship to a qualifying relative.

Extreme hardship is not a fixed or defined term; it varies from case to case. Factors that are often considered include: the qualifying relative's family ties outside the United States; the conditions in the country to which the qualifying relative would relocate and the extent of the qualifying relatives ties in such country; the financial impact of departure from this country; and significant conditions of health, particularly when it relates to an unavailability of suitable medical care in the country to which the qualifying relative would relocate. The Board of Immigration Appeals has held that not all of these factors need be analyzed in any given case and emphasized that the list is not exclusive.

Common or typical results of removal or inadmissibility do not rise to the level of extreme hardship such as economic disadvantage, loss of current employment, inability to maintain one's standard of living, inability to pursue a chosen profession, separation from family members, severing community ties, cultural readjustment after living in the United States for many years, inferior economic and educational opportunities in the foreign country, or inferior medical facilities in the foreign country.

Although the factors listed above individually may not rise to the requisite hardship, when considered in their totality they may. The Board of Immigration Appeals has held that an officer that is adjudicating the fraud waiver must not consider individual factors in the abstract but rather, must consider the factors in the aggregate when considering whether extreme hardship exists. A combination of the hardships, taken together, may likely result in a finding of extreme hardship.

The medical condition of the qualifying relative is ordinarily the most important consideration with respect to the extreme hardship standard. In addition, psychological and emotional issues are likewise crucial to a positive decision. The qualifying relative must show that he receives regular treatment and monitoring for his medical or psychological/emotional issues. A description by the qualifying relative about the painful episodes caused by the separation from the applicant will show that stress would aggravate a medical or psychological condition. The applicant must demonstrate that the stress would be lessened if the applicant were permitted to remain in the United States. Support for the manner in which U.S. citizens would be treated medically in the applicant's native country can be found in the U.S. Department of State's reports for that specific country. The Department of State reports will also address issues such as personal safety, crime and services that are available in the named country.

The qualifying relative must describe the effects that separation from the applicant will have on him. For instance, can the qualifying relative function alone; are there episodes of sadness; crying; insomnia; loss of appetite/weight; headaches and problems concentrating? Is there major depression stemming from the prospect of prolonged separation from the applicant? The psychological report should indicate whether the qualifying relative receives any relief from anti-depressant medications and sleep aids that may have been prescribed. Will the psychological distress worsen with a prolonged separation from the applicant?

The cumulative effect of all the hardship factors must be balanced against the adverse factors. The Board of Immigration Appeals describes the balancing as that of a "balance of the adverse factors evidencing an alien's undesirability as a permanent resident with the social and humane considerations presented on the alien's behalf to determine whether the grant of relief in the exercise of discretion appears to be in the best interests of the country."

Finally, the applicant must address two issues: First, how the separation of the couple will adversely affect the qualifying relative (spouse) if the spouse remains in the United States and the applicant remains abroad. Second, the hardship that the qualifying relative will suffer if he has to relocate to the applicant's home country. The applicant must show the effects of the qualifying relative leaving his profession, family and life in the United States if he has to live abroad.

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The law firm of Youman, Madeo & Fasano, LLP, serves the immigrant community surrounding New York City, including the boroughs of Manhattan, Queens, Brooklyn, Bronx and Staten Island. We serve clients on Long Island and in the New Jersey cities of in Patchogue, Union City, Hoboken, Jersey City and North Bergen. We draw inquiries from people living and working in New York County, Bronx County, Queens County, Kings County, Richmond County, Nassau County and Suffolk County; and in New Jersey's Hudson County, Essex County and Bergen.